Charkaoui v. Canada

Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350, 2007 SCC 9 (CanLII)

• An evaluation of the security certificate regime in IRPA as it existed in 2007
• An overarching principle of fundamental justice is that before the state can detain someone, it must accord them a fair judicial process.
• 3 basic facets of the principle of procedural fairness mandated by principles of fundamental justice: hearing before an independent and impartial magistrate; decision by the magistrate on the facts and the law; right to know the case against and right to answer that case

• See Harkat (2014) for the latest judgment on Canada’s security certificate regime, which was held to be procedurally fair and thus consistent with the principles of fundamental justice pursuant to s. 7:
o [8]The constitutionality of the IRPA scheme was challenged by Mr. Harkat and other non-citizens named in security certificates. In Charkaoui I, this Court found that the IRPA scheme deprived named persons of their life, liberty, and security of the person in a manner that was not in accordance with principles of fundamental justice, contrary to s. 7 of the Charter. It found that the IRPA scheme precluded the judge from making a decision based on all the relevant facts and law, because it did not provide for representation of the named person in the closed portion of the proceedings. It also held that the IRPA scheme violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure.

o [10] In response to this Court’s ruling, Parliament made several amendments to the IRPA scheme: An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3; the amended IRPA scheme is reproduced in the Appendix to these reasons. In particular, it created a role for special advocates, who protect the interests of the named person in closed hearings after having received disclosure of the entire record.